By the Court,
Miller, J.
The principal question in this case arises in reference to the principle adopted by the referee in allowing damages to the defendant, hy reason of his failure to enjoy the entire privileges granted by the lease. The referee decided that the defendant was entitled to an apportionment of the rent of the demised premises in consequence of the eviction, and to costs of repairs made hy the defendant growing out of the plaintiff’s failure to repair. He also held that the defendant was not entitled to recoupe the value of the lease over and above the rent, or for rents he might have realized, or for special damages incurred by reason of being evicted from the use of the water.
The defendant claims that even upon the principle established by the referee, he did not allow an abatement of the rent equal to the value of the use of the premises from which he was evicted, relatively to the value of the part he retained, assuming the rent reserved as the standard of value. It is also contended that the principle of compensation adopted by the referee was .wrong, and that he erred in refusing to allow the increased value of the lease, over and above the rent, and the special damages proven which were the immediate and natural consequence of the eviction.
In an action by the vendor against the vendee, where there has been a failure of title, a vendee cannot recover from [64]*64the vendor the enhanced value of the premises. (Baldwin v. Munn, (2 Wend. 405.) The extent of a grantor’s responsibility in such a case, under any and all the'usual covenants in a deed, is the purchase money with interest. (4 Kent’s Com. 476, 477. 5 John. 49. 12 id. 126. 12 Wend. 142.)
In Kinney v. Watts, (14 Wend. 41,) Justice Sutherland says: “A lease, where no purchase money is paid by the lessee, ■ does not differ in principle in this respect from an ordinary conveyance in fee for a valuable pecuniary consideration. As the lessee has paid no purchase money he can recover none back upon eviction; and in respect to the improvements which he has made upon the premises, and the money expended upon them, he stands precisely upon the same footing with the purchaser, who recovers nothing for improvements or expenditures; nor can a lessee upon the ordinary covenants for quiet enjoyment.
There are cases which hold that where the lessor fraudulently or perversely refuses to give possession and when the refusal does not result from his inability to give possession, without fault on his part, the lessee may recover more than the amount actually expended. (See Giles v. O’Toole, 4 Barb. 261; Lawrence v. Wardwell, 6 Barb. 423; Briggs v. Dwight, 17 Wend. 71.) It will be noticed that in these cases the lessee had the power to give possession, and refused to do so, without any reasonable excuse.
In Trull v. Granger, (4 Seld. 115,) it was held that where the lessor had leased and delivered possession of the premises to another party, the original lessee was entitled to recover the difference between the rent reserved and the value of the premises as the measure of damages. Judge Gardner, in delivering the opinion of the court in this case, recognized a distinction between cases where the injury arose from the wrongful act of third persons, and cases where the lessor denied the right and refused to permit the lessee to occupy in accordance with the terms of the lease.
In Kelly v. Dutch Church of Schenectady, (2 Hill, 105,) [65]*65which was an action on a covenant in a lease, it was decided that the lessee could recover nothing for improvements, rise in the value, &c. The rule in regard to a purchaser of real estate was held to apply. It is there said by Bronson, J.: “In case of eviction the rent ceases, and the lessee is relieved from a burden, which must be deemed equal to the benefit which he would have derived from the continued enjoyment of the property. Having lost nothing he can recover no damages. He is, however, entitled to the cost he has been put to ; and as he is answerable to the true owner for the mesne profits of the land for a period not exceeding six years, he may recover back the rent he has paid during that time, with the interest thereon.”
In Noyes v. Anderson, (1 Duer, 342;) in an action to recover damages for the eviction of the lessee by a paramount title, the same distinction is recognized. Bronson, J. says: “Where it,” (the conduct of the lessor,) “is fraudulent, the defrauded party, in an action on the case founded on fraud, may recover the value of his bargain, and any special damage which has resulted from the fraud.” This rule applies even in' cases where there is a covenant for quiet enjoyment. (Sedg. on Damages, 165, 166, 2d ed.)
In the case at bar, however, I am inclined to the opinion that the statute forbidding the implication of covenants applies. It provides that no covenant shall be implied in any conveyance of real estate, whether such conveyance contains special covenants or not. (1 R. S. 738, § 140.) The lease under which the defendant entered into possession, and by which a rent is reserved, is a grant in fee or a lease in perpetuity. The lessee and not the lessor may consider it forfeited, and it may continue forever. (Folts v. Huntly, 7 Wend. 210.) It did not convey a “chattel real,” but was a “conveyance of real estate” within the provision of the statute, in regard to the implication of covenants. (1 R. S. 738, § 140. Id. 750, § 10.) As it contained no covenant [66]*66of seizin, warranty or quiet enjoyment, none can be implied. (The Mayor &c. v. Mabie, 3 Kern. 158.)
The referee having found that there was an eviction as to the water, by a paramount title in a stranger, and no exception having been taken to his decision in this respect, by the plaintiff', it cannot now be reviewed upon the defendant’s appeal. Even if he erred in..this finding, it must be assumed, for the purposes of this case, that the lessee has been evicted, in accordance with the referee’s finding, from a portion of the privileges granted by the lease, without any fraud or bad faith, on the part of the lessor.
The only remaining question is, what damages should be allowed to the defendant ?
Assuming that there was an eviction as to the water, by a stranger, by a title paramount to the lessor’s without any' fault of the plaintiff, the defendant was entitled to an apportionment of the rent. The rule in such cases is correctly laid down in 8 Bacon’s Abr. p. 514, tit. Rent, as follows: “If the lessee is evicted of a part of the land demised, by a stranger, on title paramount, it operates as a suspension of the rent, pro tanto, and the rent is apportionable and payable only in respect to the residue.” (See also Parton v. Jones, 2 Iredell, 350; Gilbert on Rents, 173.)
In Lawrence v. French, (25 Wend. 443,) it was held that when the premises were demised at a fixed rent, and the tenant enters, but is prevented from obtaining the whole premises by a person holding a part under a prior lease
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By the Court,
Miller, J.
The principal question in this case arises in reference to the principle adopted by the referee in allowing damages to the defendant, hy reason of his failure to enjoy the entire privileges granted by the lease. The referee decided that the defendant was entitled to an apportionment of the rent of the demised premises in consequence of the eviction, and to costs of repairs made hy the defendant growing out of the plaintiff’s failure to repair. He also held that the defendant was not entitled to recoupe the value of the lease over and above the rent, or for rents he might have realized, or for special damages incurred by reason of being evicted from the use of the water.
The defendant claims that even upon the principle established by the referee, he did not allow an abatement of the rent equal to the value of the use of the premises from which he was evicted, relatively to the value of the part he retained, assuming the rent reserved as the standard of value. It is also contended that the principle of compensation adopted by the referee was .wrong, and that he erred in refusing to allow the increased value of the lease, over and above the rent, and the special damages proven which were the immediate and natural consequence of the eviction.
In an action by the vendor against the vendee, where there has been a failure of title, a vendee cannot recover from [64]*64the vendor the enhanced value of the premises. (Baldwin v. Munn, (2 Wend. 405.) The extent of a grantor’s responsibility in such a case, under any and all the'usual covenants in a deed, is the purchase money with interest. (4 Kent’s Com. 476, 477. 5 John. 49. 12 id. 126. 12 Wend. 142.)
In Kinney v. Watts, (14 Wend. 41,) Justice Sutherland says: “A lease, where no purchase money is paid by the lessee, ■ does not differ in principle in this respect from an ordinary conveyance in fee for a valuable pecuniary consideration. As the lessee has paid no purchase money he can recover none back upon eviction; and in respect to the improvements which he has made upon the premises, and the money expended upon them, he stands precisely upon the same footing with the purchaser, who recovers nothing for improvements or expenditures; nor can a lessee upon the ordinary covenants for quiet enjoyment.
There are cases which hold that where the lessor fraudulently or perversely refuses to give possession and when the refusal does not result from his inability to give possession, without fault on his part, the lessee may recover more than the amount actually expended. (See Giles v. O’Toole, 4 Barb. 261; Lawrence v. Wardwell, 6 Barb. 423; Briggs v. Dwight, 17 Wend. 71.) It will be noticed that in these cases the lessee had the power to give possession, and refused to do so, without any reasonable excuse.
In Trull v. Granger, (4 Seld. 115,) it was held that where the lessor had leased and delivered possession of the premises to another party, the original lessee was entitled to recover the difference between the rent reserved and the value of the premises as the measure of damages. Judge Gardner, in delivering the opinion of the court in this case, recognized a distinction between cases where the injury arose from the wrongful act of third persons, and cases where the lessor denied the right and refused to permit the lessee to occupy in accordance with the terms of the lease.
In Kelly v. Dutch Church of Schenectady, (2 Hill, 105,) [65]*65which was an action on a covenant in a lease, it was decided that the lessee could recover nothing for improvements, rise in the value, &c. The rule in regard to a purchaser of real estate was held to apply. It is there said by Bronson, J.: “In case of eviction the rent ceases, and the lessee is relieved from a burden, which must be deemed equal to the benefit which he would have derived from the continued enjoyment of the property. Having lost nothing he can recover no damages. He is, however, entitled to the cost he has been put to ; and as he is answerable to the true owner for the mesne profits of the land for a period not exceeding six years, he may recover back the rent he has paid during that time, with the interest thereon.”
In Noyes v. Anderson, (1 Duer, 342;) in an action to recover damages for the eviction of the lessee by a paramount title, the same distinction is recognized. Bronson, J. says: “Where it,” (the conduct of the lessor,) “is fraudulent, the defrauded party, in an action on the case founded on fraud, may recover the value of his bargain, and any special damage which has resulted from the fraud.” This rule applies even in' cases where there is a covenant for quiet enjoyment. (Sedg. on Damages, 165, 166, 2d ed.)
In the case at bar, however, I am inclined to the opinion that the statute forbidding the implication of covenants applies. It provides that no covenant shall be implied in any conveyance of real estate, whether such conveyance contains special covenants or not. (1 R. S. 738, § 140.) The lease under which the defendant entered into possession, and by which a rent is reserved, is a grant in fee or a lease in perpetuity. The lessee and not the lessor may consider it forfeited, and it may continue forever. (Folts v. Huntly, 7 Wend. 210.) It did not convey a “chattel real,” but was a “conveyance of real estate” within the provision of the statute, in regard to the implication of covenants. (1 R. S. 738, § 140. Id. 750, § 10.) As it contained no covenant [66]*66of seizin, warranty or quiet enjoyment, none can be implied. (The Mayor &c. v. Mabie, 3 Kern. 158.)
The referee having found that there was an eviction as to the water, by a paramount title in a stranger, and no exception having been taken to his decision in this respect, by the plaintiff', it cannot now be reviewed upon the defendant’s appeal. Even if he erred in..this finding, it must be assumed, for the purposes of this case, that the lessee has been evicted, in accordance with the referee’s finding, from a portion of the privileges granted by the lease, without any fraud or bad faith, on the part of the lessor.
The only remaining question is, what damages should be allowed to the defendant ?
Assuming that there was an eviction as to the water, by a stranger, by a title paramount to the lessor’s without any' fault of the plaintiff, the defendant was entitled to an apportionment of the rent. The rule in such cases is correctly laid down in 8 Bacon’s Abr. p. 514, tit. Rent, as follows: “If the lessee is evicted of a part of the land demised, by a stranger, on title paramount, it operates as a suspension of the rent, pro tanto, and the rent is apportionable and payable only in respect to the residue.” (See also Parton v. Jones, 2 Iredell, 350; Gilbert on Rents, 173.)
In Lawrence v. French, (25 Wend. 443,) it was held that when the premises were demised at a fixed rent, and the tenant enters, but is prevented from obtaining the whole premises by a person holding a part under a prior lease executed by the landlord, the latter has no right to distrain for a proportionate part, but is entitled to sustain an action for. use and occupation of the premises and recover under a quantum meruit.
Ch. J. Nelson says: “It is a familiar rule that if the landlord enter wrongfully upon or prevent the tenant from the enjoyment of a part of the demised premises, it suspends the whole rent until possession is restored. The rule is otherwise where a part is recovered by title paramount to the [67]*67lessor’s; for in. that case he is not so far considered in fault as that it should deprive him of a return for the part remaining. The law therefore directs an apportionment of the rent.” (6 Bac. Abr. 44, tit. Rent, L. Gilbert on Rents, 173. L. & T. 214, 219. Bradley on Dist. 24, 30.) It will be seen that a wide distinction is recognized between cases where the landlord enters wrongfully and where a portion of the premises is recovered by title paramount to the lessor’s. (See Hegeman v. McArthur, 1 E. D. Smith, 148; Christopher, ex'r, v. Austin, 1 Kern. 218; Ludwell v. Newman, 6 T. R. 458; Tomlinson v. Day, 2 Brod. & Bing. 680; 2 Starkie on Ev. 630; Dyett v. Pendleton, 8 Cowen, 730; Neale v. Mackenzie, 12 Cr., M. & R. 84.)
I think the referee apportioned the rent in conformity with the doctrine laid down in the cases above cited, and that the defendant was allowed all the damages to which he was legally entitled. The referee deducted $60 annually, being one-half of the annual rent, on account of the deficiency in the water, which was the only disturbance complained of. He thus allowed the $50 paid Mrs. Haight and even beyond the amount actually expended by the defendant in procuring the water. He also allowed the expenses incurred for repairs on the water wheel and floors, which the plaintiff was bound to make. This would appear to be the only real damage and actual loss sustained that could legally be allowed. The value of the lease over and above the rent agreed upon, the loss of profits in business, the expense of moving machinery and other items claimed, were not proper items of damages to be considered; nor was the plaintiff responsible for them.
The defendant had a right to terminate the lease by giving one year’s notice of his intention to do so. He was content to remain and abide by its terms and conditions, and has no reason to complain if he pays a fair rent for the premises, in accordance with the agreement, deducting what it would cost per annum to retain the water to which he was entitled.
In fixing the value at $60 annually, and in adopting this [68]*68standard, the referee allowed for and included the water used by the defendant from the plaintiff’s reservoir, and by his permission and consent.
[Albany General Term,
May 5, 1862.
Hogeboom, Peckham and Miller, Justices.]
Although the plaintiff was bound to furnish water to be carried in wood tranks according to the conditions of the lease, yet having furnished the water otherwise than as provided for, I do not see why its value should not be considered in arriving at the amount of damages actually sustained by the defendant. Even if the agreement gave no such right, and the plaintiff does not ask in the complaint to recover that account, yet having given permission to the defendant to use the water for the purpose of supplying the deficiency created, the plaintiff would not be entitled to recover in another action for its use. So long then as the-defendant availed himself of the advantages derived from the use of the water with the plaintiff’s assent, there is no good reason why its value should not be allowed.
Considering all the facts, I do not feel at liberty to say that the amount of rent allowed by the referee was extravagant and exorbitant, or beyond the fair value of the premises after deducting all damages that could properly be set off. So far as the evidence showed what the actual loss sustained by the defendant was, the referee was better qualified to judge than an appellate tribunal; and as he has not adopted an improper or an illegal basis in deciding that question, there is no good reason for disturbing the conclusion at which he has arrived.
The judgment entered upon the report of the referee should be affirmed.,